Spencer v. Spencer

Supreme Court of New York, Second Department

February 28, 2018

Sharon Marie Spencer, respondent,v.Dwayne Spencer, appellant.

APPEAL
by the defendant, in an action for divorce and ancillary
relief, as limited by his brief, from so much of an order of
the Supreme Court (Catherine M. DiDomenico, J.), dated
November 18, 2016, and entered in Richmond County, as, after
a hearing, granted that branch of the plaintiff's motion
which was to hold him in civil contempt for his violation of
certain orders that had been issued during the pendency of
the action and directed his incarceration unless he paid a
purge amount of $150, 000 by December 16, 2016. By decision
and order on motion dated February 2, 2017, this Court stayed
enforcement of so much of the order as directed the
defendant's incarceration unless he paid the purge amount
by December 16, 2016, pending hearing and determination of
the appeal.

This
case presents two issues of first impression in the area of
matrimonial law not previously addressed by an appellate
court in New York. The first issue is whether the provisions
of Domestic Relations Law § 236(B)(2)(b) and Uniform
Rules for Trial Courts (22 NYCRR) § 202.16-a, in tandem
(hereinafter together the automatic orders), constitute
unequivocal mandates of the court for the purposes of holding
a party in civil contempt pursuant to Judiciary Law §
753. If so, then the next issue is whether such civil
contempt is an available remedy for a violation of the
automatic orders when that civil contempt is sought after
entry of a judgment of divorce. For the reasons set forth
below, we answer the first issue in the affirmative and the
second in the negative. Specifically, we find that the
automatic orders constitute unequivocal mandates of the
court, but civil contempt is not an available remedy for
violation of the automatic orders when civil contempt is
sought after entry of a judgment of divorce.

Sharon
Marie Spencer (hereinafter the plaintiff) commenced this
matrimonial action in the Supreme Court, Richmond County,
against her husband, Dwayne Spencer (hereinafter the
defendant), on July 18, 2012. An 18-day trial was held, and
thereafter, on November 30, 2015, a judgment of divorce was
entered.

After
the judgment of divorce had been entered, the plaintiff
learned that, while the trial was pending, unbeknownst to
her, the defendant sold a warehouse in Brooklyn, which was a
marital asset (hereinafter the Property), without her consent
and without the consent of the Supreme Court during the
pendency of the action.

At the
time the defendant sold the Property, both Domestic Relations
Law § 236(B)(2)(b) and 22 NYCRR 202.16-a were in full
force and effect. As is relevant to this appeal, each
provision, with language that virtually mirrors the other,
precludes either of the parties in a matrimonial action from
transferring or in any way disposing of marital assets such
as the Property without the written consent of the other
party or order of the court, except under certain
circumstances not applicable to this case (see
Domestic Relations Law § 236[B][2][b]; 22 NYCRR
202.16-a). The automatic orders are binding upon a plaintiff
upon commencement of the matrimonial action and upon a
defendant upon service of the summons or summons and
complaint (see Domestic Relations Law §
236[B][2][b]).

Although
the judgment of divorce had already been entered, as a result
of the plaintiff's discovery of the defendant's
earlier sale of the Property, on July 29, 2016, the plaintiff
filed an order to show cause seeking, inter alia, pursuant to
Judiciary Law § 753, a finding of civil contempt against
the defendant. The Supreme Court then held a hearing on the
plaintiff's order to show cause, during which the
defendant admitted that he sold the Property for $1.6 million
during the pendency of the divorce trial. The defendant
asserted that, after paying the mortgage and other
encumbrances on the Property, he received proceeds from the
sale in the amount of $300, 000, which he spent paying debts
that he owed.

In an
order dated November 18, 2016, the Supreme Court, inter alia,
granted that branch of the plaintiff's motion which was
to hold the defendant in civil contempt, finding the
defendant's sale of the Property in violation of the
automatic orders and his expenditure of the proceeds for his
own benefit defeated, impaired, impeded, or prejudiced the
rights of the plaintiff. The court directed that, unless the
defendant purged the contempt by paying $150, 000 to the
plaintiff on or before December 16, 2016, the defendant would
be incarcerated every weekend for a period of six months. The
defendant appeals from so much of the order as held him in
civil contempt and directed him to be incarcerated if the
purge amount was not timely paid. In a decision and order on
motion dated February 2, 2017, this Court stayed enforcement
of so much of the order as directed his incarceration if the
purge amount was not timely paid.

I.
The Law of Civil Contempt

The
goal of civil contempt is to vindicate a party's right to
the benefits of a judicial mandate or to compensate that
party for the interference by the contemnor (see Matter
of McCormick v Axelrod, 59 N.Y.2d 574, 582-583). In
order to adjudicate a party in civil contempt, a court must
find: (1) that a lawful order of the court, clearly
expressing an unequivocal mandate, was in effect, (2) that
the party against whom contempt is sought disobeyed the
order, (3) that the party who disobeyed the order had
knowledge of its terms, and (4) that the movant was
prejudiced by the offending conduct (see id. at 583;
El-Dehdan v El-Dehdan, 26 N.Y.3d 19, 29;
Bernard-Cadet v Gobin, 94 A.D.3d 1030, 1031; see
also Judiciary Law § 753[A][1]). The party seeking
a finding of civil contempt must prove these elements by
clear and convincing evidence (see El-Dehdan v
El-Dehdan, 26 N.Y.3d at 29). Upon a determination that a
party has committed civil contempt, the court may impose as a
punishment a fine in an amount sufficient to indemnify the
aggrieved party for an actual loss, including counsel fees,
and/or imprisonment for up to six months or until the fine is
paid (see Judiciary Law §§ 773, 774).

As
noted above, the language of Domestic Relations Law §
236(B)(2)(b) and 22 NYCRR 202.16-a is virtually identical.
Domestic Relations Law § ...

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